End User License, Maintenance and Support Agreement

ShareGate Desktop

Please read this end user license, maintenance and support agreement (“Agreement”) carefully. The present Agreement defines the terms and conditions under which GROUPE SHAREGATE INC. (“Sharegate”) will deliver, maintain and support the Software, as defined in Article 1 below. By installing or using the Software, you agree to be bound by the terms and conditions of the present Agreement.

The present Agreement is between Sharegate and the natural person or entity who accesses, installs, tries and/or uses the Software defined herein (the “Customer”). Sharegate is willing to grant the Customer the right to use or try the Software only if the Customer accepts all terms and conditions of the present Agreement, and pays or has paid Sharegate, its resellers or agents, all applicable fees.

By clicking the “I agree” button displayed in conjunction with the present Agreement during the installation process of the Software, and/or by installing, copying or accessing the Software and/or by signing a copy of the present Agreement, the Customer acknowledges that he has read the present Agreement, understands its terms and conditions, and agrees to be bound by it. If the Customer does not agree to all terms and conditions in the present Agreement, no license to the Software shall have been granted and the Customer should not access or otherwise utilize the Software.

1. Definitions and interpretation

The following capitalized terms shall have the meaning ascribed to them below. Other capitalized terms used in the present Agreement are defined in the context in which they are used and shall have the meanings ascribed therein.

1.1. “Activation” means the number of instances, as purchased by the Customer, the license key can be activated at the same time to permit Users to use the Software pursuant to this Agreement.

1.2. “Commencement Date” means the date when the present Agreement is entered into by Sharegate and the Customer.

1.3. “Confidential Information” has the meaning set forth in Section 12.1 of the present Agreement.

1.4. “Customer Data” means data in electronic form that is managed, to be managed, migrated or to be migrated by the Customer using the Software, including without limitation by the Customer’s employees.

1.5. “Internal Use” means use of the Software in Customer’s internal operations and on its own SharePoint environment. For clarity purposes, “Internal Use” excludes any use of the Software for the benefit of a third party, including, among others, in the context of providing services to such third party.

1.6. “License” has the meaning set forth in Section 2.2 of the present Agreement.

1.7. “Maintenance Services” has the meaning set forth in Article 3 of the present Agreement.

1.8. “Party” means either Sharegate or the Customer, and “Parties” means both of them.

1.9. “Related Materials” means any and all documentation supplied by Sharegate under the present Agreement, whether in electronic and/or physical formats.

1.12 “Trial License” has the meaning set forth in Section 2.1 of the present Agreement.

1.13 “Trial Version” means a version of the Software, so identified, to be used only to review, test, and evaluate the Software for a limited time period. The Trial Version may have limited features and will cease operating after a predetermined amount of time due to an internal mechanism built into the Trial Version.

1.14 “User” means any individual who uses the Software on the Customer’s behalf, whether authorized or not.

2. Grant of License

2.1. If the Software is a Trial Version, this Section 2.1, and not Section 2.2, shall apply. Subject to the provisions of the present Agreement, Sharegate hereby grants to the Customer a limited, revocable, non-perpetual, non-exclusive, non-transferable object code license to review, test, and evaluate the Software for its Internal Use for the duration specified on Sharegate’s website when the Software is installed (the “Trial License”).

2.2. If the Software is not a Trial Version, this Section 2.2, and not Section 2.1, shall apply. Subject to the provisions of the present Agreement as well as the payment of all applicable fees for the term of such License, Sharegate hereby grants to the Customer a revocable, non-perpetual, non-exclusive, non-transferable (except as specified in Section 11) object code license to use the Software for its Internal Use for the period purchased by the Customer (the “License”).

2.3. All rights not specifically granted to the Customer by the present Agreement are reserved to Sharegate.

2.4. The License is a per-Activation license. The Customer may only activate the number of Activations it has purchased and is responsible for coordinating the activation and deactivation of the license key to permit Users to use the Software in accordance therewith. For the avoidance of doubt, (a) the Customer may transfer a license key from one User to another at no additional charge so long as the Customer does not exceed the total number of Activations, and (b) mere installation of the Software does not count toward the number of Activations.

3. Maintenance and Support Services

During the term of the License, Sharegate agrees to provide to the Customer software maintenance and support services, namely (i) making available to the Customer patches, fixes, updates and/or enhancements generally made available to Sharegate’s customers from time to time, if any, and (ii) technical support, on an as-needed basis for the sole purpose of responding within a reasonable period of time and attempting to address, during normal business hours (9AM to 5PM Eastern Time – UTC/GMT -5 hours), technical issues relating to the use of the Software, which may include online technical support (support@sharegate.com), and telephone technical support (1-888-444-3168) when deemed appropriate at the sole discretion of Sharegate, but which exclude any on-site technical support by Sharegate personnel, agents or subcontractors (collectively referred to as the “Maintenance and Support Services”). Without limiting the generality of the foregoing, any requests by the Customer for additional features or functionality that fall outside of Sharegate’s ongoing updates and/or enhancements of the Software are excluded from Maintenance and Support Services.

3.1. Obligations of the Customer

3.1.1. Back-Ups: The Customer acknowledges that it is solely responsible for ensuring that adequate back-ups of its data are made and stored.

3.1.2. Current Software Version: The Customer must update the Software in its entirety to the most recent released version of the Software. In order to provide technical support, Sharegate may request that the Customer update the Software to the most recent released version.

3.1.3. System Requirements: The Customer agrees that, subject to the Customer’s internal policies, it will upgrade its hardware, computer operating system and software to meet the changing System Requirements as specified by Sharegate in its Software-related support documentation published on its website (https://support-desktop.sharegate.com/hc/en-us/articles/115000597267-Installation). The Parties agree that Sharegate is bound by no obligation to ensure that the Software is compatible with other components than those specified in the System Requirements, nor to ensure that new releases of the Software are compatible with versions of any required computer operating system or software exceeding three (3) years from the date of their respective releases.

3.2. Maintenance and Support Services Limitations

3.2.1. Sharegate may refuse to provide technical support related to (i) Customer Data; (ii) unauthorized modified portions of the Software, or (iii) portions of the Software affected by unauthorized modified portions of the Software. The Customer agrees that the hardware on which the Software operates will be operating properly and must have been and continue to be properly maintained by the manufacturer of the hardware or a properly qualified service organization.

3.2.3. The Customer is responsible for properly testing and applying routine virus updates and security patches without the need for additional notice by Sharegate.

4. Term and Termination

4.1. The present Agreement and the License commence as of the Commencement Date, and remain in force until the expiration of the License period purchased by the Customer.

4.2. The Customer may at any time terminate this Agreement and the License by sending a written notice to Sharegate, provided that such termination will not entitle the Customer to any refund nor reduction in fees.

4.3. If the Customer materially breaches any provision of the present Agreement, Sharegate may terminate the present Agreement, provided, however, that (i) Sharegate has given to the Customer a prior written notice of the breach within a period of at least thirty (30) days to cure it and (ii) the Customer has not cured the breach during such period. Termination for breach shall not alter or affect Sharegate’s right to exercise any other remedies for breach. Such termination with not entitle the Customer to any refund nor reduction in fees.

4.4. Upon termination of the Agreement and the License, the Customer must permanently delete all copies of the Software under its control or in its possession, and upon request by Sharegate, must provide a written confirmation of such deletion.

5. Fees

5.1. The Customer shall pay the fees associated with the purchased License.

5.2. There shall be added to the applicable fees provided for in the present Agreement amounts equal to any taxes, whether federal, state, provincial or local, however designated, that may be validly levied or based upon the present Agreement or upon the Software, License or Maintenance and Support Services furnished hereunder. The Customer shall have the right to have Sharegate contest with the imposing jurisdiction, at the Customer’s expense, any such taxes that the Customer deems are improperly levied.

6. Customer Data and Privacy

6.1. Use of Customer Data. Unless it receives the Customer’s prior written consent, Sharegate: (a) shall not access, process or otherwise use Customer Data other than as necessary to facilitate use of the Software by such Customer; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Sharegate’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Sharegate may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Sharegate shall give the Customer prompt notice of any such legal or governmental demand and reasonably cooperate with the Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at the Customer’s expense.

6.2. Data Accuracy. Sharegate shall have no responsibility or liability for the accuracy of data uploaded or processed by the Customer when using the Software, including without limitation Customer Data and any other data uploaded or processed by Users.

6.3. Utilization Data. The Customer acknowledges and agrees that to the extent permitted by law, the aggregated data derived from telemetric information and data related to how Users access and use the Software (including, but not limited to, stack trace data and reports related thereto) are owned by Sharegate and do not constitute Customer Data.

6.4. Privacy Policy. The Privacy Policy (https://sharegate.com/privacy-policy) applies only to the Software and does not apply to any third-party website or service linked to the Software or recommended or referred to through the Software or by Sharegate’s staff.

6.5. GDPR. Parties may be subject to additional terms and conditions under the General Data Protection Regulation (Regulation (EU) 2016/679). Such terms may be found in the Data Processing Addendum, which is hereby incorporated in the Agreement, to the extent applicable.

7. Responsibilities and Restrictions of the Customer

7.1. Unacceptable Use. The Customer shall not: (a) use the Software for any other use than for Internal Use; (b) provide the Software serial codes, password or other product key information to any third party; (c) share non-public features or content of the Software with any third party; or (d) access or use the Software in order to build a competitive product or service; to build a product using similar ideas, features, functions or graphics of the Software; or to copy any ideas, features, functions or graphics of the Software. In the event that it suspects any breach of the requirements of this Section 7.1, including without limitation by Users, Sharegate may suspend the Customer’s License to the Software without advanced notice, in addition to such other remedies as Sharegate may have. The present Agreement does not require that Sharegate take any action against the Customer or any User or other third party for violating this Section 7.1 or the present Agreement, but Sharegate is free to take any such action it sees fit.

7.2. Unauthorized Access. The Customer shall take reasonable measures to prevent unauthorized access to the Software, including without limitation by protecting its passwords and other log-in information.

7.3. Unauthorized Use or Distribution. Except in accordance with the License, the Customer shall not copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, merge, adapt, translate, create any derivative works or otherwise reproduce any part of the Software or Confidential Information, nor authorize or attempt to do any of the foregoing, without the prior written consent of Sharegate. Any tangible embodiments of the Software or Confidential Information that may be generated by the Customer, either pursuant to or in violation of the present Agreement, will be deemed to be the sole property of Sharegate and fully subject to the obligation of confidentiality set forth in Article 12 of the present Agreement.

7.4. Compliance with Laws. In its use of the Software, the Customer shall comply with all applicable laws.

7.5. Users & the Software Access. The Customer is responsible and liable for: (a) any User’s use of the Software, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of the present Agreement applicable to the Customer; and (b) any use of the Software through the Customer’s account, whether authorized or unauthorized.

8. Indemnification by the Customer

The Customer must defend and hold Sharegate harmless against any claim brought by a third party against Sharegate arising from or related to use of the Software by the Customer or its Users in breach of this Agreement; provided (a) Sharegate shall promptly notify the Customer of the threat or notice of such claim; (b) the Customer will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, the Customer shall not settle or compromise any claim that results in liability or admission of any liability by Sharegate without Sharegare’s prior written consent); and (c) Sharegate fully cooperates with the Customer in connection therewith. If the Customer is a governmental or public entity, this Section 8 will not apply to the Customer only to the extent the Customer’s jurisdiction’s laws prohibit the Customer from accepting the requirements in this section.

9. Intellectual Property

9.1. Intellectual Property Rights. Sharegate warrants that it is the owner of the Software and of each and every component thereof or the recipient of a valid License thereto, and that it has and will maintain the full power and authority to grant the rights granted in the present Agreement without the further consent of any third party.

9.2. Indemnification for IP Claim. Sharegate will defend the Customer against any third party claim, suit or proceeding arising out of or related to a claim that the Software, when used in accordance with this Agreement, infringes or violates any intellectual property right (an “IP Claim”). Sharegate will indemnify the Customer for any costs (including reasonable attorneys’ fees) associated with the defense or settlement of and/or damages finally awarded against the Customer in any IP Claim. If an IP Claim is made or appears likely to be made, Sharegate, at its sole discretion and own expense, will take one or any of the following actions: (a) secure for the Customer the right to continue using the Software; (b) replace or modify the Software to render it non-infringing; or (c) terminate the infringing features of the Service and refund to the Customer any prepaid fees for such features, in proportion to the portion of the term remaining after such termination. The indemnification obligations in this section are subject to: (i) prompt notification in writing by the Customer of any IP Claim (provided however, that the delay or failure to give such notification shall not affect the Customer's entitlement to indemnification hereunder, except to the extent that Sharegate shall have been prejudiced as a result of such delay or failure) (ii) the transfer of sole control of the defense and any related settlement negotiations to Sharegate, unless agreed otherwise by the Parties; and (iii) the Customer’s cooperation, at Sharegate’s expense, in the defense of such claim. THIS SECTION STATES SHAREGATE'S SOLE OBLIGATION AND LIABILITY, AND THE CUSTOMER'S SOLE REMEDY, FOR BREACH OF THE WARRANTY IN SECTION 9.1 AND FOR POTENTIAL OR ACTUAL INTELLECTUAL PROPERTY INFRINGEMENT BY THE SOFTWARE. NOTWITHSTANDING THE ABOVE, SHAREGATE SHALL HAVE NO LIABILITY TO THE CUSTOMER IF THE INFRINGEMENT ALLEGED IN THE IP CLAIM RESULT FROM USE OF THE SOFTWARE IN COMBINATION WITH HARDWARE OR SOFTWARE NOT PROVIDED BY SHAREGATE.

10. Warranty Disclaimers

THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL DEFECTS AND ERRORS, IF ANY. THE SOFTWARE IS SUBJECT TO CHANGE WITHOUT NOTICE. SHAREGATE MAKES NO REPRESENTATIONS AND NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR WARRANTIES OF PERFORMANCE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE. SHAREGATE ASSUMES NO LIABILITY FOR ANY SYSTEM ON WHICH THIS SOFTWARE IS INSTALLED OR FOR ANY CONTENT MANIPULATED BY THE SOFTWARE.

11. Limitations on Transfer

The Customer shall not assign or transfer the present Agreement or the Customer’s interests, rights or obligations hereunder, and any purported assignment or transfer shall be null and void. Notwithstanding the foregoing, the Customer may assign or transfer this License to an affiliated company; provided that such affiliated company agrees in writing to be bound by the terms of the present Agreement.

12. Confidentiality

12.1. "Confidential Information" means all non-public, confidential, or proprietary information disclosed before, on or after the Commencement Date, by either Party (a "Disclosing Party") to the other Party (a "Recipient") or its affiliates, or to any of such Recipient's or its affiliates' employees, officers, directors, partners, shareholders, agents, attorneys, accountants, or advisors (collectively, "Representatives"), including, without limitation, all trade secrets and other information regarding the features, functioning, security, pricing, sales strategy or marketing strategy of current or future products or services of Sharegate, including the Software.

The term "Confidential Information" as used in this Agreement shall not include information that (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by the Recipient or any of its Representatives; (b) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient; (c) was known by or in the possession of the Recipient or its Representatives, as established by documentary evidence, before being disclosed by or on behalf of the Disclosing Party under this Agreement; or (d) was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information.

12.2. The Recipient shall (a) protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information; (b) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to fulfill the purpose of this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to (i) the Recipient's Representatives and (ii) Sharegate’s third party service providers, who are subject to confidentiality duties or obligations to Sharegate that are no less restrictive than under this Agreement, in connection with the providing of the Software. Notwithstanding the foregoing, the Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Recipient shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.

12.3. Each Party retains its entire right, title, and interest, including all intellectual property rights, in and to all of its Confidential Information. Any disclosure of such Confidential Information shall not be construed as an assignment, grant, option, license, or other transfer of any such right, title, or interest whatsoever to the Recipient or any of its Representatives.

13. Limitation of Liability

Except for breach of obligations specified in Section 9.1 of the present Agreement (Intellectual Property Rights), neither Party will be liable to the other for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of revenues, profits, goodwill, use, data, failure to realize expected savings, or other intangible losses (even if such Party has been advised of the possibility of such damages), however caused, under any theory of liability, arising from the performance of, or relating to, the present Agreement. Except for the indemnification specified in Section 9.2 (Indemnification for IP Claim), in no event shall Sharegate have any liability to the Customer in excess of the amount paid by the Customer to Sharegate under this Agreement.

14. Relation of Parties

14.1. Nothing in the present Agreement will create or imply an agency relationship between Sharegate and the Customer, nor will the present Agreement be deemed to constitute a joint venture or partnership between the Parties.

15. General

15.1. Governing Law. The present Agreement is governed, construed, and enforced in accordance with (i) the laws applicable in the Canadian province of Quebec if the Customer is located in Canada or (ii) the laws of the State of New York if the Customer is located outside of Canada, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. If the Customer is a governmental or public entity, this Section 15.1 will not apply to the Customer only to the extent the Customer’s jurisdiction’s laws prohibit the Customer from accepting the requirements in this section.

15.2. Jurisdiction and Venue. The Parties agree that any litigation in any way relating to the present Agreement shall be brought and venued exclusively in (i) the judicial district of Montreal in the Canadian province of Quebec if the Customer is located in Canada or (ii) an appropriate federal or state court in New York, New York, USA if the Customer is located outside of Canada, and waives any objection that such venue is inconvenient or improper. If the Customer is a governmental or public entity, this Section 15.2 will not apply to the Customer only to the extent the Customer’s jurisdiction’s laws prohibit the Customer from accepting the requirements in this section.

15.3. Force Majeure. Except as expressly provided otherwise in the present Agreement, dates and times by which a Party is required to render performance under the present Agreement shall be automatically postponed to the extent and for the period of time that such Party is prevented from meeting them by reason of an unforeseeable and irresistible event, including external causes with the same characteristics, provided the Party so prevented promptly notifies the other P arty of the commencement and nature of such event or cause and the probable consequences thereof.

15.4. Time of the Essence. Time is of the essence of the present Agreement and of every part thereof.

15.5. Entire Agreements. The present Agreement is the complete and exclusive statement of the Parties’ agreement relating to the subject matter hereof and supersedes all offers (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the Parties relating hereto. SHAREGATE EXPRESSLY OBJECTS TO AND REJECTS ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY THE CUSTOMER, INCLUDING THOSE CONTAINED IN THE CUSTOMER’S PURCHASE ORDER, ACCEPTANCE OR WEBSITE.

15.6. Waiver. No waiver by either Party of any default in performance on the part of the other Party will constitute a waiver of any subsequent breach or default by the defaulting Party.

15.7. Notices. Sharegate may send notices pursuant to the present Agreement to the Customer’s email contact points provided by the Customer, and such notices will be deemed received 72 hours after they are sent. The Customer may send notices pursuant to the present Agreement to Sharegate at finance@sharegate.com, and such notices will be deemed received 72 hours after they are sent.

15.8. Assignment & Successors. The Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and assigns.

15.9. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of the present Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of the present Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the present Agreement will continue in full force and effect.

15.10. Conflicts. In the event of any conflict between the present Agreement and any Sharegate policy posted online, including without limitation Privacy Policy, the terms of the present Agreement will govern.

15.11. Technology Export. The Customer shall not permit any third party to access or use the Software in violation of any Canadian law or regulation. Without limiting the generality of the foregoing, the Customer shall not permit any third party to access or use the Software in or export such software to, a country subject to an embargo by Canada or the United States.

16. Modification of agreement

Sharegate may amend this Agreement from time to time by posting an amended version on its website and in the installation process of the Software.

If you have questions about Sharegate's End User License Maintenance and Support Agreement, please contact us at sales@sharegate.com.

Last Updated: May 14, 2018

ShareGate Overcast

These terms of services (the “General Terms”) govern the use of, and the subscription to, Overcast provided by Groupe ShareGate Inc. (“ShareGate”). By accessing Overcast, you agree to the General Terms on behalf of the organisation that you represent (“Customer”).

1. Definitions and Interpretation

1.1 The following capitalized terms shall have the meaning ascribed to them below:

(i) “Azure” means Microsoft Azure cloud computing platform.

(ii) “Azure REST API” means the API provided by Microsoft that allows to perform HTTP operations on an Azure tenant service resources and account.

(iii) “Customer Data” means any data on Customer’s activities, consumption metering resource usage, configuration and spending in Azure that ShareGate has access to on Customer through Azure REST API.

(iv) “Overcast” means the tool and platform commercialized by ShareGate as “Overcast”, that gathers cost information about Customer’s Azure resources and issues recommendations to optimize management of resources, and allows Customer to act on those recommendations.

1.2 The term “including” is not limiting and means “including, without limitation”.

2. Access and use of Overcast

2.1 Services. During the Term (as defined in Section 8), ShareGate grants to Customer the right to access and use Overcast, and any related services, in accordance with the General Terms (the “Services”). The Services are further described on the Website.

2.2 Access to Customer’s Azure REST API. Customer understands and agrees that in order for ShareGate to obtain the Customer Data required to perform the Services, ShareGate must be granted access to Customer’s Azure REST API. Customer confirms that it has granted such access to ShareGate.

2.3 Services Revisions. ShareGate may revise the content, features and functions of Overcast at any time without notice. ShareGate will provide Customer with prior notice if there is a change to Overcast resulting in overall material decrease in functionality of Overcast.

2.4 Temporary Suspension of the Services. ShareGate may temporarily limit or suspend the Services from time to time at its discretion including to perform upgrades to, and maintenance of, Overcast.

2.5 Unacceptable Use. Customer shall not, nor attempt to, nor permit third parties to: (a) share non-public features or content of Overcast with any third party; or (b) copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, merge, adapt, translate, create any derivative works or otherwise reproduce any part of Overcast. For clarity purposes, Customer shall not access Overcast in order to build a product or service competing with the Services or to build a product using ideas, features, functions or graphics similar to those of Overcast. In the event that it suspects any breach of this Section, ShareGate may suspend Customer’s access to the Services without advanced notice, in addition to such other remedies as ShareGate may have.

2.6 Account Security and Access. Customer shall take reasonable steps to prevent unauthorized access to Overcast, including by protecting its passwords to its Azure and other login information. Customer is responsible for any activity occurring in its account (other than activity that ShareGate is directly responsible for and is not performed in accordance with Customer’s instructions), whether or not Customer authorized that activity. Customer shall immediately notify ShareGate if it becomes aware of any unauthorized access to, or use of, its account.

2.7 Customer Systems. Customer is responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software that Customer uses to access and use the Services. Customer acknowledges that the Services may not work properly if its operating systems, Internet browsers and anti-virus software are not up-to-date.

2.8 Indemnification by Customer. Customer shall defend, indemnify and hold harmless ShareGate against any claim, suit or proceeding arising out of, or related to Customer use of Overcast or the breach of any warranty, covenant or other obligation contained in these General Terms by Customer.

2.9 Compliance with Laws and other contractual requirements. When using the Services, Customer shall comply with all applicable laws as well as any contractual agreements between Customer and Azure.

3. Service fees of Overcast and Billing

3.1. Applicable Service Fees. Customer shall pay ShareGate all applicable fees for the Services as specified on the Website unless other payment terms have been agreed to in writing between Customer and ShareGate (the “Service Fees”). Customer agrees that its subscription be automatically renewed at the Renewal Date for the same subscription term as the previous one, unless it cancels its subscription before the Renewal Date in accordance with Section 8.2(i). Customer is responsible for timely canceling its subscription in accordance with Section 8.2(i) regardless of whether it receives any renewal prior notice from ShareGate. For the purpose of the General Terms, a “Renewal Date” is the first day following the expiration of a subscription term.

3.2. Revised Service Fees. ShareGate reserves the right to revise the Service Fees applicable to any future subscription term in its sole discretion. The revised Service Fees will take effect as of the next Renewal Date for the next subscription term further to a prior notice from ShareGate to Customer.

3.3. No Refunds. Payments are non-refundable and there are no refunds or credits for partially used periods.

3.4. Free trial. From time to time, ShareGate may offer trials of the paid subscription for a specified period without payment (a “Trial”). ShareGate reserves the right, in its absolute discretion, to determine Customer’s eligibility for a Trial and to withdraw or to modify a Trial at any time without prior notice and with no liability.

3.5. Third Party Payment Processor. ShareGate reserves the right to use a third-party PCI-DSS compliant payment processor for all billing and receipt of payments hereunder.

3.6. Taxes. Unless otherwise stated, the Service Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes except those assessable against ShareGate based on its income. ShareGate will invoice Customer for such Taxes if ShareGate believe it has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.

4. Data

Customer Data

4.1. Customer Data. Customer grants ShareGate a perpetual, irrevocable and royalty-free right to access, use, process, copy, distribute, perform, export and display Customer Data, only to the extend permitted by law and as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) create de-identified data aggregated for benchmarking and marketing purposes or (d) as otherwise expressly permitted in writing by Customer. This right continues with respect to the de-identified data derived from Customer Data and any residual backup copies of Customer Data made in the ordinary course of business even after Customer stops using the Services. ShareGate retains the right to delete any copies of such Customer Data.

4.2. Protection of Customer Data. ShareGate shall store and process the Customer Data in a manner consistent with industry security. ShareGate has implemented technical, organizational and administrative systems, policies, and procedures to help ensure the security, integrity and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data. Nonetheless, Customer acknowledges and agrees that in accessing and using Overcast, the Customer Data is subject to risks of unauthorized disclosure, loss or exposure. To the extend authorized by law, ShareGate offers no representation, warranty or guarantee that Customer Data shall not be subject to unauthorized use or disclosure.

4.3. Disclosure of Customer Data. Unless it receives Customer’s prior written consent, ShareGate shall not intentionally grant any third party access to Customer Data, except to ShareGate’s third party services providers in connection with the performance or the improvement of the Services. Before sharing any Customer Data with any of its third party service providers, ShareGate will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Notwithstanding the foregoing, ShareGate may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Unless prohibited by law or any court order, ShareGate shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

Personal Information

4.4. Personal Information. In the course of using the Services, Customer may transfer to ShareGate Customer Data containing personal information. ShareGate agrees to collect, access or process any personal information in accordance with its Privacy Policy available at ShareGate Privacy. Customer agrees and consents to the transfer, processing and storage of personal information in accordance with the General Terms and the Privacy Policy.

4.5. GDPR. Parties may be subject to additional terms and conditions under the General Data Protection Regulation (Regulation (EU) 2016/679). Such terms may be found in the Data Processing Addendum, which is hereby incorporated in the General Terms, to the extent applicable.

Utilization Data

4.6. Utilization Data. Customer acknowledges and agrees that to the extend permitted by law, the aggregated data derived from telemetric information and data related to how Customer accesses and uses Overcast (including, but not limited to, feature and function of Overcast being used by Customer) (the “Utilization Data”) is owned by ShareGate and does not constitute Customer Data. For clarity purposes, the Utilization Data does not include the aggregated data derived from telemetric information and data related to how Customer accesses and uses Azure.

Confidential Information

4.7. Confidential Information. “Confidential Information” means any non-public, confidential and sensitive information, including Customer Data, disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and excludes any information that is:

(i) subject to applicable data protection laws, publicly available or later becomes publicly available other than through a breach of the General Terms;

(ii) known to the Receiving Party or its employees, agents or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or

(iii) subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality.

4.8. Use or Disclosure of Confidential Information. The Receiving Party shall only use or disclose Confidential Information to exercise its rights and fulfill its responsibilities under the General Terms. The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information and in any event, at least diligent and prudent care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information, except that ShareGate may disclose Confidential Information to its third party services providers in connection with the performance or the improvement of the Services, in which case ShareGate will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Confidential Information and preventing unauthorized access. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.

5. Warranty disclaimers

5.1. Warranty Disclaimers. CUSTOMER ACKNOWLEDGES AND AGREES THAT SHAREGATE DOES NOT CONTROL THE CUSTOMER DATA AND DOES NOT GUARANTEE THE ACCURACY, INTEGRITY OR QUALITY OF SUCH CUSTOMER DATA. CUSTOMER IS SOLELY RESPONSIBLE FOR MAKING ITS OWN DECISIONS BASED ON THE RECOMMENDATIONS MADE BY OVERCAST AND DEALING WITH ANY RELATED CONSEQUENCES. CUSTOMER UNDERSTANDS THAT OVERCAST’S RECOMMENDATIONS ARE BASED ON SHAREGATE'S OWN DETERMINATION OF WHAT IS IMPORTANT TO TAKE INTO CONSIDERATION WHEN MAKING A DECISION ABOUT THE OPTIMIZATION OF THE MANAGEMENT OF RESOURCES IN ITS AZURE. FURTHER, SHAREGATE DOES NOT WARRANT ANY MONEY SAVING ARISING OUT OF THE USE OF THE SERVICES AND DOES NOT GUARANTEE THAT CUSTOMER’S AZURE CAN BE FURTHER OPTIMIZED. SHAREGATE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, DEFECT FREE AND ERROR FREE. CUSTOMER ACCEPTS THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL DEFECTS AND ERRORS, IF ANY. ShareGate MAKES NO REPRESENTATIONS AND NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

5.2. Failure caused by Azure REST API. Overcast relies on Azure REST API to perform the Services. Without limiting Section 5.1 (Warranty Disclaimers), ShareGate is therefore not responsible if a failure to perform the Services is caused by a default of Azure REST API.

6. Limitation of liability

6.1. Dollar Cap. IN NO EVENT SHALL SHAREGATE'S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE GENERAL TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT.

6.2. Exclusion. IN NO EVENT SHALL SHAREGATE BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE GENERAL TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR FRAUD OR WILLFUL MISCONDUCT OF SHAREGATE.

7. Intellectual property and feedback

7.1. No Rights granted. ShareGate retains all right, title, and interest in and to Overcast and the content Customer accesses through Overcast, other than Customer Data. These General Terms do not grant Customer any intellectual property rights in or to Overcast or in ShareGate’s logos and other trademarks.

7.2. Indemnification. Subject to Section 6 (Limitation of Liability), ShareGate will defend, indemnify, and hold harmless Customer and its officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any Third Party Claim Losses, including any interest accrued, but excluding any Third Party Claim Litigation Expenses; provided, however, that ShareGate will have no liability if the Third Party Claim Losses against Customer arises from (a) Customer Data; or (b) any modification, combination or development of Overcast that is not performed by ShareGate. Customer must provide ShareGate with prompt written notice of any Third Party Claim Indemnifiable Proceeding and allow ShareGate the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting ShareGate defense and settlement of such matter. For the purpose of this Section, the following definitions apply:

(i) “Third Party Claim Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding brought against Customer arising out of a third party claim that the software used in Overcast infringes any intellectual property rights of such third party;

(ii) “Third Party Claim Litigation Expenses” means any reasonable out-of-pocket expense incurred in defending a Third Party Claim Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements; and

(iii) “Third Party Claim Losses” means any amount finally awarded in, or paid in settlement of, any Third Party Claim Indemnifiable Proceeding.

Any feedback or suggestions sent by Customer or shared by Customer with ShareGate to improve Overcast may be implemented by ShareGate. In such case, Customer grants ShareGate an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free right to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer.

8. Term

8.1. Term. These General Terms are effective as of the first date that Customer uses Overcast until they are terminated by any or both Parties in accordance with Section 8.2 (the “Term”).

8.2. Termination. These General Terms may be terminated:

(i) by Customer at any time if it cancels the Services through its ShareGate account or with an ShareGate customer representative;

(ii) by ShareGate at any time if Customer materially breaches any of its obligations under these General Terms. In the event that the material breach is curable, the General Terms may be terminated if such breach is not cured within fifteen (15) days after ShareGate provides notice of the breach. For clarity purposes, any violation of Section 2.5 (Unacceptable Use) and 2.8 (Unacceptable Conduct of Users) by Customer shall be deemed a material breach of these General Terms;

(iii) by ShareGate if Customer fails to make any payment of the Service Fees; or

(iv) by ShareGate for convenience with a ninety (90) days prior notice.

8.3. No Refund in the Event of Termination. Section 3.3 (No Refunds) applies, regardless of the cause of termination.

9. General

9.1. Publicity. Customer grants ShareGate the right to use Customer’s company name and logo as a reference for marketing or promotional purposes. If Customer wishes to limit such right, it shall send an email to legal@ShareGate.com.

9.2. Choice of Law, Jurisdiction and Venue. These General Terms shall be governed solely by the laws of the Canadian province of Quebec, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties agree that any litigation in any way relating to these General Terms shall be brought and venued exclusively in the judicial district of Montreal in the Canadian province of Quebec and waives any objection that such venue is inconvenient or improper.

9.3. Specific Performance. Notwithstanding any other provision in these General Terms, each Party acknowledges and agrees that a non-breaching Party may, upon any breach of these General Terms, immediately seek enforcement of these General Terms by means of specific performance or injunction, without any requirement to post a bond or other security.

9.4. Force Majeure. Except as expressly provided otherwise in these General Terms, ShareGate shall not be liable by reason of any failure or delay in the performance of its obligations on account of an unforeseeable and irresistible event, including external causes with the same characteristics (a “Force Majeure”), which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortgages, riots, fires, act of God, war, terrorism and governmental action.

9.5. Time of the Essence. Time is of the essence of these General Terms and of every part thereof.

9.6. No Other Agreements. These General Terms are the complete and exclusive statement of the Parties’ agreement relating to the subject matter hereof and supersedes all offers (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the Parties relating hereto.

9.7. Notices. ShareGate may send notices pursuant to these General Terms to Customer’s email contact points provided by Customer. Customer may send notices pursuant to these General Terms to ShareGate at legal@ShareGate.com. Notices shall be deemed received 24 hours after they are sent.

9.8. Assignment & Successors. These General Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns.

9.9. Waiver. No waiver by either Party of any default in performance on the part of the other Party shall constitute a waiver of any subsequent breach or default by the defaulting Party.

9.10. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of these General Terms invalid or otherwise unenforceable in any respect. In the event that a provision of these General Terms is held to be invalid or otherwise unenforceable, such provision shall be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these General Terms shall continue in full force and effect.

9.11. Technology Export. Customer shall not export any software provided by ShareGate or otherwise remove it from Canada or the United States except in compliance with all applicable Canadian and U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use Overcast in or export such software to, a country subject to an embargo by Canada or the United States.

9.12. Amendments. ShareGate reserves the right to amend these General Terms from time to time by posting an amended version of the General Terms on its Website. Customer’s continued use of the Services following any such amendments may be relied upon by ShareGate as Customer’s consent to any such amendments.